Wednesday, December 03, 2008

The House of Commons distinguished itself this afternoon. There was no ranting, no raving, no play acting, and most of all not too much sign of party politics. It was an occasion when the House of Commons rose to the occasion and showed that it can behave itself when it needs to.

The Speaker's statement was far more controversial than most of us were expecting. Effectively he fingered the Police, as well as demonstrating that the Serjeant at Arms is clearly not up to her job. Martin said he did not consent to the searching of the offices and said Jill Pay should not have approved the search without asking for a warrant. He said the Police should have told her she was able to deny permission without a warrant. Clearly, she should have known that.

Michael Martin was clearly angry about what had happened, but he did not make clear that the buck stopped with him, and not Jill Pay. He was informed on Wednesday evening of the fact that an MP's office might be searched. Martin has told us what Jill Pay told him, but not what he said to her. Did he just listen? Did he not ask Jill Pay about the warrant issue? If not, he should have done so.

This statement is clearly damaging the Speaker even more than I thought possible. But it is also hugely damaging to the Metropolitan Police. Several MPs raised Points of Order (including Labour's David Winnick) demanding that the senior policemen responsible should be brought to the Bar of the House to explain their behaviour.

The granting of a debate on the issue on Monday and the creation of a Committee of Seven Wise MPs may buy Speaker Martin time. But he is a broken man, both politically and personally. One could almost feel the sympathy MPs felt for him. No one was willing to stick the boot in. But surely even his doughtiest defender would admit that his status and credibility is now terminally damaged.

Jill Pay is a convenient scapegoat. She was clearly underinformed and made a bad call. But if she is made to pay for this with her job, then I am afraid she should not be the only one.

Have neither the Speaker nor the S-at-A watched a police drama on the television? Don't they know that the first thing that you ask the police if they come knocking on your door is "Do you have a warrant?"

All this is the inevitable consequence of MP's abdicating their powers to the EU, quangos, and the executive, over many years. Family friendly hours were just a smokescreen for less parliamentary scrutiny. 1997 wiped out the best brains of the Tory benches and replaced them with droids. Party allegiance is not relevant - give me Tony Benn and Enoch Powell any day over the faceless automatons on both sides of the house. Edward Heath was right when he said that '..parliament is the cockpit of democracy'. A weak Parliament will always lead to exactly where we are now.Hopefully, this will be a wake up call, but I doubt it.

It seems Her Maj had the right idea when she broke with convention and refused to give Jill Pay an audience on her appointment, apparently because she (HM) was angry that the post had been downgraded and given to someone who isn't up to the job.

The MET is rotten. Firstly there is Blair, the political policeman - thank God he's gone. Then there is that high-ranking Asian officer who had to be paid nearly a million to withdraw his claims of race prejudice. Then, behold the antics of another one-time senior officer in the Australian jungle - perceptively labeled by a young 20 year old man as "spineless". And now this - a senior officer gaining entry to the House of Commons by deceit.Clear out the senior ranks. Sack the lot. A fresh start is needed.

I don't know much about Jill Pay, but it looks as if she is being scapegoated. From all the current jockeying for position, I wouldn't be surprised if somebody doesn't start squealing like a stuck pig - and then who knows? The trail, which most certainly leads to Gordon Brown, will be revealed. I can't wait.

Not sure, Iain, if you're watching Cameron's speech in the QS debate, but the Labour benches are very thinly populated, and the Labour backbenchers are embarrassing themselves in their defence of the indefensible.

The question of the Serjeant at Arms consenting (apparently inadvertently) without the prior issue of a warrant is a red herring. A warrant for the search of the House of Commons would be unconstitutional without prior consent of the House. This is completely back to front.

The Speaker's proposal for a new protocol permitting warrants to be issued against the House is also completely misconceived, for the same reason.

Can someone just confirm for me that a Warrant was needed? As far as I can tell section 18 of C60 of PACE 1984 gives the police power to search the premises of a person arrested for an arrestable offence (see http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=8&NavFrom=2&parentActiveTextDocId=0&activetextdocid=1871578)...

I assume misconduct in a public office is a arrestable offence, if its not i'd like to stand corrected.

I have not been given reason to believe that this section is not still enforced and again if its not, i'm happy to be corrected.

I'm with withering vine on this one. The serjeant at arms had no business giving consent regardless of a warrant, and as such should be sacked. The speaker should have made this clear to her on any of the occasions he admits they spoke, and also to the acting commissioner when they spoke, and as such he should be replaced.

It's quite a mess isn't it - Martin's statement basically admitted that there were serious flaws with the way that the affair was handled: The Sgt at Arms should definitely have demanded a warrant, most people in the street would know this - why didn't she?

Brown really hasn't had a response for this, Howard, Cameron & Co have been very good so far: Brown's just panicking, him being pressed from various sides for a clear answer results in huffy looks at the speaker, papers thrown to one side and a look that could kill. You can guarantee that some small animal is going to be getting his clunking boot up it's arse after this session.

Jailhouselawyer: I'm questioning the requirement for the warrant. According to my reading of that section, the Police have the POWER to go an inspect the property following an arrest, which would make a warrant unnecessary.

It does fly in the face of the comment by the speaker that entry could have been refused. If that section is law, then entry could not be refused as the Police had legal authority to enter and search.

I also haven't heard anything about a warrant for the other properties searched, i might be wrong but if the Police were acting under this section then they had the authority to act as they did.

Withering Vine @ 4.10 has an excellent point and it shouldn't be allowed to get lost in all the smoke and waffle we can expect between now and Monday's 'debate' - a debate, btw, which will have its parameters set by the government.

An arrest entitles police to search premises occupied or controlled by the arrestee. I assume that the complaint proceeds on the basis that Green is not the occupier of controller of his commons office. I must admit I had assumed that he was. Assuming this to be correct it was wrong for the police not to bring the S@A's attention to her right to object. In view of the sensitivity she should have exercised that right. the speaker should indeed have been more actively involved. That this approach will be taken on a going forward basis seems eminently sensible. Was there anything else?

In case anyone is misreading my posting at 4:10, the consequence of the point I was making is that leaving aside issues of judgement - on that there seems to have been a general cock-up - the Serjeant at Arms followed the correct procedure, since a warrant couldn't have been issued without consent, and if consent were to be given then there is no need for a warrant.

Hence, as I said, the warrant point is a red herring.

The Speaker was confessing to an error of procedure that he did not make. I suppose that may be seen as better than confessing to an error of judgement.

Annoying One, you're right: section 18 permits search without a warrant here. The search seems to have been lawful - and the Speaker didn't say he thought otherwise. You're right that the question of a warrant is a complete red herring, which the Speaker is now bringing out (a) as a sop, to make people think insisting on a warrant is somehow respecting Parliamentary privilege, which is also a red herring and (b) so as to blame his staff.

If he thinks a warrant was necessary, he knew an arrest was coming and failed to instruct his staff properly, then he's the one who should go. In fact, Jill Pay did nothing wrong, and the only minor thing the police may have done wrong as a matter of law (I'm not saying the arrest was a good call) is not make absolutely clear consent could be refused. Mind you, it's not totally clear under the Code that they even have to do that. The relevant PACE Code is here - see para. 4.3.

That is the most breathtakingly idiotic post I have ever seen on any thread - and the competition is hot.

Yes it was a rather stupid statement, it does however raise the question of why the Sergeant at Arms was ignorant of even the most basic legal frameworks? Surely it should be a requirement for her to know her and parliaments rights in order for her to do her job?

Actually on reflection para. 5 of the PACE Code is probably most relevant - to searches with consent. The only issues is whether they breached para. 5.2 - and they might reasonably argue that the exception in para. 5.4 applied.

Gordon Browns mortgage rescue plan for homeowners that he has announced today is storing up long term problems for many, that will fall on the taxpayer.

Peston has explained that where somebody falls on hard times they can reduce their mortgage payment, the unpaid part will be rolled up and guaranteed by the State.

The scheme is for 2 years - putting the problems nicely into the next Governments tenure.

Those most at risk are likely to be those with the largest mortgages as a percentage of their property value - so if the plug is ultimately pulled, there may be negative equity and the taxpayers guaranteed part will be lost in full.

Of course the banks have signed up to it. If they pull the plug now, they suffer the negative equity themselves. If they use the government scheme, it is a one way bet, with the chance to avoid losing out on negative equity through repossession.

So the Government is not just guaranteeing the banks, but now some mortgage holders - at what point does the taxpayer stop taking on extra risk?

One final thing - the idea that Norther Rock will now wait 6 months before starting repossession needs to be looked into. The report does not refer to 6 months arrears, just 6 months from going into arrears - quite a different thing. Banks have traditionally waited for 3 months of arrears to accrue before taking legal action.

The whole business serves as a perfect metaphor for the Nu Lab project. The election, appointment and promotion of people into jobs well beyond their capability and understanding.

This is evidenced at various levels, incompetents like Brown and Darling at the steering wheel driving the economy into the cliffs of Dover, and similarly the bungling by Gorbals Mick and his incompetent assistants in the running of Parliament.

If there is an onus on the police to do this then they are clearly primarily at fault, although I do find it curious that the Sergeant at Arms might sign something without it occurring to her what she was signing for. I'll be interested to see the police's response to this.

Seriously though, did anyone think he actually did quite a good job as a Speaker today?

One final thought, didn't anyone find it a bit ridiculous Gordon Brown continually refusing to answer questions 'because of the inquiry' when pretty much all of the relevant information for the specific questions asked was already available in the House? Ken Clarke's question in particular wasn't prone to prejudice anything in my view.

Oh Mike O'Brien is digging one hell of a hole for himself on BBC Parliament right now. He is basically saying that the arrested civil servant joined the civil service to delibreately leak information to the Conservative Party! Peter Bottomley is raising points of order and Sir Alan Haslehurst has just practically reprimanded Mike O'Brien!

David McClean is calling for David Normington and Gus O'Donnell to resign!

Head of Legal and others rather miss the point that the Palace of Westminster has a special legal status and the law of Parliament applies. If it is held that the material held within Parliament is legally privileged, then the police do not have the power to search.

I doubt that the Sargent at Arms even had the authority to give consent to the search of Mr Green's private office. Only Mr Green can give consent, or the search should have taken place under warrant.

The police should have known this and should not have used the consent as authorisation to proceed in the way they did. They appear to have become to big for their boots on this, hubris seems to have been driving them forward. Their attitude is clearly seen in the video recently uploaded.

Speaker Martin was definitely asleep on the job when he was called by the Sargent at Arms. Anyone with an ounce of common sense would have asked under what authority the police were intending entering the HoC.

As has been mentioned, does not the whole charade sum up this government;cowardly manipulation, poorly conceived plan, failure of enterprise, attempt to conceal the facts, misleading denials of ministerial involvement, bluster, blaming others, enquiry revealing shocking levels of ignorance and incompetence - sacking of some numb-nuts minion who carries the can.

Yes, Withering Vine, I am saying PACE applies! If it didn't, then what would sense would talk of warrants make? The Police apply for search warrants... under PACE.

Jimmy's right: this isn't about Parliamentary privilege at all. Parliamentary privilege does not extend to giving MPs any protection from criminal arrest and search.

And Erskine May is quite wrong: this is nothing to do with legal privilege, which is about legal advice. If the police had found legally privileged material in Damian Green's office, it'd have been protected from seizure just the same as anyone else legally privileged material.

Head of Legal: Sorry, I just think you are wrong. The issue of a warrant for the entry and search of the House of Commons is unconstitutional and a breach of privilege. The Serjeant at Arms could have sent the police packing, even if they were clutching a warrant.

You are right that the question of issuing a warrant is a red herring, but for the wrong reason.

The point is missed somewhat IMHO. Yes there is Parliamentary privilege but the overriding concept is one of Parliamentary Sovereignty. I have severe doubts (althoug not he Speaker apparently) that a Warrant could even lawfully be issued in respect of an office on the Parliamentary Estate. Warrants are usually issued pursuant to S8 of PACE 1984 and are issued by a Magistrate after taking information on Oath from the Applicant.

Now can it be lawful for an inferior court to issue a Warrant in respect of an office in what is actually a superior court? Parliament is after all a Court and the Parliamentary precints are a ROYAL PALACE. It can be argued that by issuing a warrant the Court would be interfering with the operation of Parliament. It is an interesting 'moot' point and one which I don't think has been properly addressed.

As for S18 PACE 1984 yes that DOES permit a search of premises once a person has been arrested. However, it requires the written authority of an officer of at least Inspector Rank and has very limited scope.

The searches of Green's home and non Parliamentary Estate office could have been conducted AFTER arrest under S32 PACE 1984. There are questions about whether or not the arrest should have occured (in my view it should not) but once the arrest had taken place the other 3 searches were lawful. It is just the one in Parliament itself which is legally flawed.

Forgive me if this has been covered, but there seem to be two important points not really being picked up here, neither of which is effected by the warrant / no warrant business:

1) Its been widely reported that the S@A's role was downgraded recently, and her responsibility is now only for the Commons chamber itself - if so, how can she legally grant permission for the police to search an MP's office?

2) When Mr Green's house was raided, Mrs Green prevented the police taking away her documents / PC etc because they contained, amongst other things, legally privileged correspondence with her clients. Isn't MPs' correspondence with constituents similarly protected, if so why was that taken? (Or rather, why didn't the Commons authorities prevent it from being taken?)

Think what you like, Withering Vine: I'll be happy to admit you're right if you can cite me the section of PACE which exempts Parliament, or the case which establishes the point you're making. I think what you say about warrants shows you're out of line with what most people think, on all sides - that a warrant could be applied for and exercised in relation to the Palace of Westminster.

Adam, it's not that legal premises are a no-go. Legal privilege is about legal advice - the police can't simply seize anyone's legal advice - that's why searches of lawyers' offices are tricky. There's no problem searching a solicitor's office to find drugs, arms, laundered cash etc.. And anyway, this is all irrelevant: legal privilege is wholly and entirely different from Parliamentary privilege, which, as Jimmy has rightly said, does not prevent criminal arrest of MPs or search of their premises.

The Joint Committee on Parliamentary Privilege said in 1999 -

The privilege (freedom from arrest) appears never to have applied to members of either House in respect of criminal charges, or to any matter which includes an element of criminality.

Jimmy: Says Erksine May (although it will be next week before I have my copy available to me), principles established at the time of the Commonwealth and possibly also article 9 of the Bill of Rights (although that may be more contentious).

girlie_boi: The Speaker's statement was not concerned with the search of Mr Green's home. Privilege is irrelevant to that. What you say is not wrong, but not the point that the original article was dealing with.

It's nothing to do with Parliamentary sovereignty, girlie boi. Parliamentary sovereignty means Parliament can make or unmake any law, and no one can set aside its laws. It's about its power to legislate, not its privileges.

Head of legal: That's the wrong way round. Parliament can certainly by enactment give up its privileges - as was done (in part) in the Data Protection Act 1998 - but you would need to show a specific provision in the Police and Criminal Evidence Act applying its provisions to the House of Commons. I do not have the Act in front of me. Does it have one?

I did a very quick online search and found the following Erskine May quote:

“serving or executing civil or criminal process within the precincts of either House while the House is sitting without obtaining the leave of the House is a contempt.”

This would seem to imply at least that on a day the House was not sitting, there was no contempt. It would also appear that other restrictions on searches and arrests in Commonwealth Parliaments have been imposed either by statute (in Canada) or written protocol (in Australia), which would seem to imply that such restrictions did not exist at Common Law.

Head of Legal: This is getting rather tedious. Privilege is involved in anyone other than the House itself exercising the powers of the Crown (which includes judicial powers) within the precincts of the Palace of Westminster. Without consent of the House (or the prior giving up of that privilege) they simply cannot do it. This issue was settled when Charles I lost the civil war.

Your extract was concerned with the arrest of members for criminal offences. There is no problem with an arrest provided it is not done in the precincts of the Palace of Westminster. It used to be said it could not be done while Parliament was sitting even outside the precincts, but that is no longer the case. Neither is there a problem with the issue of a warrant in respect of an MP's home.

I'm sorry you think it's tedious, Vine. But if you're right on this, how come no one in Parliament seems to think no search could be conducted even with a warrant? It's not just me you're saying is wrong: everyone in Parliament is wrong, on your view.

Anyway, perhaps you're right and we should shut up about this now: readers can make up their own minds who's right, and I'm quite happy to be shown I'm wrong.

The real issue here (as I keep saying on my own blog) is nothing to do with privilege, but the abuse by ministers and police of this old, ill-defined common-law offence against a civil servant and an MP to enforce secrecy by the most authoritarian means - simply to protect the government from embarrassment.

Head of Legal: I do not think you can conclude what "everyone in Parliament" thinks. Going back to the original point, as I said "The Serjeant at Arms could have sent the police packing, even if they were clutching a warrant."

"The House of Commons distinguished itself this afternoon. There was no ranting, no raving, no play acting, and most of all not too much sign of party politics. It was an occasion when the House of Commons rose to the occasion and showed that it can behave itself when it needs to."

And just think, if we were not predominantly governed by the EU it could be our sole legislative entity too.

I find it incredible that Jill Pay went off to seek legal advice in the Palace of Westminster - a place stuffed to the rafters with lawyers - and no one advised her that she did not have to grant access to the police unless they had a warrant.

There is something very peculiar about this whole caper and the police do themselves no credit by

a) investigating in the first place instead of telling the Home Office to deal with the leak themselves

b) using the tactics they did to gain access to Damian Green's office when it was probable a search warrant would be refused as he was not suspected of a serious arrestable offence.

It seems to me the Government front bench has badly misjudged this issue. Peter Mandleson yesterday, and Jacqui Smith, earlier today, had clearly decided to go in hard against the Tories and now the phrase 'potential breach of security' is being bandied about. But it won't wash. It won't wash with the public and it won't wash with their own backbenchers.

Also: Gordon Brown's habit of ostentatiously laughing when David Cameron is speaking is becoming tedious. I suggest someone punches him on the nose to teach him some manners.

Parliamentary privilege encompasses a range of rights and privileges claimed over time by both Houses of Parliament. Parliamentary privilege in respect of proceedings in Parliament is only one part of privilege and the only part covered by statute. There is privilege designed to protect members individually in fulfilling their duties and there is privilege claimed collectively by each House. What happended in respect of the search of Damian Green's office does not relate to proceedings in Parliament. However, it is for the Commons to determine if it breaches any of the other privileges it claims for itself or its members, for example in respect of obstructing members in fulfilling their duties.

Now we have had the fantasy lets hope we get to know what really happenened.... We need to know about the warrants and who signed them and why.We need to know if the Home Secretary was involved.We need some good good leaks from the Police - why should they carry the can!And we need to hear from the S-at-A.

ACPO COMMENT ON INVESTIGATION INTO HOME OFFICE LEAKS1st December 2008 Chief Constable Ken Jones and President of ACPO said: “The last 48 hours has seen a good deal of speculation and critical commentary around the recent arrest of Damian Green MP. Such a reaction was inevitable but there comes a time to step back, suspend judgment and allow due process to run its course. The Home Office occupies a unique position in government, with responsibility for decisions on crime and terrorism which affect the safety and security of everyone. To meet that responsibility in a way which delivers effective law enforcement to the people of our country requires complete trust between government, law enforcement and intelligence agencies. Leaks can and do erode that trust, particularly given the critical and sensitive nature of information the Home Office handles. In recent times ACPO has shared the concerns of the Permanent Secretary regarding leaks from his department. The Metropolitan Police Service was properly asked to assist.“The police service always strives to operate in the broader public interest, and not in the interests of any political party, group or government. This is an increasingly difficult task for the service but it is not one we will shirk. The independence of UK law enforcement from undue influence and pressure is the jewel in the crown in our system of criminal justice. We should protect that principle, even when inconvenient, as it occasionally is. If an investigation reveals that any person may be involved in wrongdoing then they have the right to expect that we will investigate the matter in ways which seek to get at the truth and either sustain the allegation or exonerate them. No one can be above the law. The good reputation of our Parliament turns, to an extent, on its willingness to demonstrate its support for this principle when necessary. Enquiries of this sort provide assurance that no person under investigation, regardless of station, shall be given an opportunity to influence an enquiry in their favour. “There are now several avenues open whereby the MPS can properly be asked to give an account in due course. Meanwhile, to repeat an earlier point, we need to let the enquiry run its course.”

APA: LEAVE POLITICS OUT OF POLICING2nd December 2008 Association of Police Authorities Chairman, Bob Jones, said: “The recent controversy over the arrest of Damien Green clearly illustrates the difficulties when it can be alleged that police investigations are for party-political purposes. ”Because politicians are not above the law, there will inevitably be police investigations on issues such as postal voting and cash for honours, as well as cases like the current controversy. “It is essential for public confidence that the police are properly accountable for impartially carrying out the law of the land. Currently, only in London, can the police be described as being accountable to a single political party, through either the Home Secretary or the London Mayor. Elsewhere in the country police are accountable to police authorities which cannot have a party-political majority, thereby offering assurance to local people that the police are accountable to all of the community, not a single vested interest. ”Outside of London, allegations of Chief Constables working to a party political agenda are rare, as the balanced structure of police authorities which oversee local policing, means this allegation has no credibility. ”The proposals from all three front benches, including the government’s proposals to introduce direct elections to police authorities, would re-introduce a party political majority to whole swathes of the country, opening up even more allegations of a party political agenda to the detriment of both policing and politics. ”All 3 front benches need to think again. For policing to have the confidence of our communities the service must be transparently accountable to the whole of the community. Reintroducing party politics to British policing will cause immense damage to public confidence in the Service.”

The terms 'arrestable offence' and 'serious arrestable offence' that some commentators are using in reference to this matter are erroneous. These legal phrases have been obsolete in England and Wales since 2006.

I note some one saying that a warrant is unnecessary where consent is given for a search. Consent by whom? Did Damian Green consent? Can the Commons staff consent on his behalf?

Some others have been saying s 18 of PACE dispenses with a warrant. Damian Green's custody record will have to show that a sec 18 search was authorised by an officer of a certain rank.

Even if the police went over to the commons armed with this authority the police would have had to inform the Commons staff -if not the speaker- that they were there to carry out a search under sec 18.

But the staff would not have known that the search was a s 18 search until they were told as such. You cannot expect them to have asked the police: Are you here on a s 18 search? it seems improbable. Moreover, it is very likely that the person in question would not haveknown of s 18. In any event, if it was a s 18 search the police would have told her it was a s 18 search.

The more natural thing is to ask for a warrant.

Moreover, it would be equally natural for the police to have told them that they did not require a warrant because they had the power under s 18. Ergo, there was no s 18 search.